Just wanted to say that, as others have noted, the excerpted words come from a 71 page reply, but I wouldn't say it was anything like picking four unrepresentative words. Take, for example, this longer paragraph from the filing:
> Hacking video game access controls facilitates piracy and therefore undermines the core anti-piracy purposes of Section 1201. As explained above, hacking the video game access controls requires, by definition, hacking of the video game console or similar device in order to play the hacked video game. Once the access controls for the video game console are hacked, regardless of the purported purpose or intent of the hacker, any content, including pirated games, can be played on a video game console.
> What's more, console hackers may distribute their console-hacking solution to gamers that have no intention of using it for the purposes stated in the proposed exemption. The risk of piracy is even greater on personal computers and similar devices that do not utilize device-based access controls to prevent the installation of unauthorized software. The individual can use consoles to make and store infringing copies of copyrighted games and other content and to distribute these unlawful copies online to a large audience.
You can't really go line-by-line through a 71-page comment, but it's fair to say that that sort of rhetoric—conflating "hacking" with piracy with illegality, regardless of context—runs throughout, and is what my colleague highlighted here.
I don't want to get into a long argument about it, but from your tone I almost get the impression that you don't think the ESA has a legitimate interest in preventing piracy.
... and I also think that shouldn't prevent anyone from doing anything they like with any electronic devices or digital bits they acquired legally.
The sticking point is the DMCA anti-circumvention provisions. We're talking about exemptions from these provisions. These provisions should not exist in the first place. "hackers" aka smart people who use computers should absolutely be allowed to do whatever they want to make their own purchased games work, even if the ESA member companies are working against them.
Let ESA member companies do stupid DRM stuff which makes their products worse for paying customers.
Let paying customers do whatever they want with what they bought, including making it work even when it's not supposed to work anymore.
(EDIT: I should probably mention the rather undermined first-sale doctrine. You obviously should be able to buy or be given an old game from someone else who bought it, and make it work)
The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Promises agreed to in contracts that restrict your ability to modify games are enforceable. Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law.
You can want the law to be otherwise (I might too!), but that's not germane to the actual situation EFF faces, which is a legal argument with ESA in the venue of the Library of Congress.
Even then, I don't want to blame the EFF too much, but to critique the peculiarly zero-sum American appraoch to resolving conflicts of interest, as discussed in this excellent book: http://www.amazon.com/Adversarial-Legalism-The-American-Way/...
ESA has interest in preventing piracy, but that does not give them any more rights. I have interest in acquiring a million dollars, but it would be a poor argument for me to justify robbing a bank with that interest. In the same way, the fact that ESA is interested in something does not constitute good argument to prevent harmless activities having nothing to do with piracy - because there are much better and less rights-infringing ways to further the same interest.
Well, there's legitimate and there's legitimate. We're not discussing here whether they should try to prevent piracy, it's whether they should block efforts to get a small temporary exemption related to non-infringing uses of abandoned software put in place for the next three years.
It's frustrating to me that ESA and some of the other respondents here try to bootstrap from a copyright purpose to non-copyright ones. Nothing in this exemption would render infringement legal; if granted, it would just remove legal uncertainty from circumvention for limited non-infringing uses. In that sense, the legitimacy of the underlying copyright concern is kind of irrelevant.
I have to disagree with you here. Both in this filing and in their broader campaigns, they've done everything they can to conflate copyright infringement with hacking/viruses/etc. and many of their references are irrelevant or unsupported, they just want to put the words piracy and hacking together at every opportunity.
Which is itself disingenuous, as ESA member Sony is itself infamous for using malicious hacking in its attempt to stop copyright infringement (e.g. the Sony rootkit). Although I will admit that I'm maligning them given the chance. I haven't bought anything from Sony since that very day.
I think that's exactly what is happening. This is often used in politics, and is akin to "I'm just saying..."
"He may or may not have criminal intentions, I don't know, I'm just saying..."
It's intentionally drawing loose correlations and leaving the equivalence up to the reader. Once the suggestion is made, however, it's hard to dissociate.
I agree with one of the ancestor posters - the ESA has no dog in this fight other than fearing that allowing any hacking is a slippery slope, and it is in their favor to make sure "hacking" is never seen in a positive light.
Creating and distributing kits for the circumvention of the console restrictions has a drastically broader application than merely playing abandoned games.
Given that such an exception would essentially gut the law, the ESA most certainly has a dog in the hunt.
You can, in fact, go line-by-line through a 71-page comment. When you purport to summarize it, you are obliged to capture it in its entirety, or else disclaim the fact that you're responding only to a fragment. EFF failed to do that here.
9 minutes later
The ESA document isn't 71 pages long. It's 29 pages, plus exhibits. I read all 29, and mined out all the arguments I could find (excuse the typos, I tried to go as fast as I could):
sweeping scope
burden is on exemption asker
no concept of “abandoned game” in copyright law
exempts modifications on non-gaming platforms
applies to games other than those eft claims it does
turning off online services doesn’t abandon game
access controls used for more than just enabling matchmaking
implicates controls fundamental to the platform like code signing
copyright owner entitled to benefits/revenue from online services
fails to meet burden that “most use would be noninfinging”
online services licensed separately from game, so modifying game itself infringes
six month time duration has no basis in law
exemption is broader than fair use (preservation and study)
significant commercial non transformative use
involves reproduction/distribution of copyrighted game assets
amount of code implicated is sweeping and unreasonable, unlike book excerpt
has the effect of circulating tools also used for piracy, which harms market
too many market alternatives to support argument of irreparable harm to consumers, including 1p games
copyright holders already doing preservation work with museums
consumer harm proposed by eff is hypothetical
games aren’t abandoned when they have thriving communities, so benefits are minimal
librarian is obligated by congress to consider adverse effect of exemptions
eff identifies no actual nonprofit or archival project that would benefit
online services have no impact on criticism comment or news reporting
creates confusion among users about what is or isn’t lawful, thus increasing piracy
impacts not just copyright but also brands and trademarks of game publishers
---
Do you honestly think EFF's summary of these arguments was honest? This took me 9 minutes to read and type up. EFF didn't have 9 extra minutes to get it right?
It's the same song the ESA has sung for years to step in the way of legitimate hacking, and is not too far away from "won't someone think of the children!"
No, no they don't. You're doing exactly what the EFF is doing - being intellectually lazy and recasting their arguments into unrepresentative excerpts that you then proceed to dismiss. A number of points tptacek listed are nuanced legal arguments, and I see nobody addressing them.
Some of these points are obvious grasping at straws. First, there is denying the problem exists:
- no irreparable harm to consumers
- games aren’t abandoned when they have thriving communities, so benefits are minimal
- turning off online services doesn’t abandon game
The farcical:
- exempts modifications on non-gaming platforms (by which they mean computers, both desktop and mobile)
- copyright owner entitled to benefits/revenue from online services
And the remaining arguments are mostly technical legal arguments about copyright holder rights and time durations, which may have legal merits, but don't address fairness concerns. If someone sold an e-book, then came back years later and removed half the chapters while simultaneously claiming that no one should be able to archive or distribute those redacted chapters, AND that the seller is entitled to benefits from those chapters they redacted, AND that there was no harm to consumers, we would rightly ridicule the incoherency of those mutually exclusive arguments.
One of the arguments ESA made seems to resonate with people. I don't think it's at all dishonest to point that out.
We will address the comments more completely with the response filing. In the meantime, I'm glad your 9 minute list exists in case people prefer it to the original.
Here is EFF's chosen title for this article:
Videogame Publishers: No Preserving Abandoned Games, Even for Museums and Archives, Because All "Hacking" is Illegal
Well, that, and about thirty other things.
Later, summarizing EFF's own article, is this sentence, which is its own graf:
Behind this hyperbole, ESA (along with MPAA and RIAA) seem to be opposing anyone who bypasses game DRM for any reason, no matter how limited or important.
This appeal to "hyperbole" is a straw man.
